California Court of Appeal Apr 12, 2016 No. E063504Unpublished
Filed 4/12/16 P. v. Smith CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063504
v. (Super.Ct.No. FVI800708)
CHARLES AUSTIN SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Coreen Ferrentino, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1
On November 4, 2014, the voters approved Proposition 47, The Safe
Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain
nonserious, nonviolent felonies to misdemeanors. Proposition 47 allows a person
convicted of a felony prior to its passage, who would have been guilty of a misdemeanor
under Proposition 47, to petition the court to reduce his or her felony to a misdemeanor
suspect classifications or the alleged infringement of a fundamental interest,” the
classification is upheld unless it bears no rational relationship to a legitimate state
purpose.’” (People v. Singh (2011) 198 Cal.App.4th 364, 369; see also People v.
Hofsheier (2006) 37 Cal.4th 1185, 1199.)
We have not concluded in this case that a person who is convicted pursuant to
Vehicle Code section 10851 is ineligible for resentencing under Penal Code section
1170.18, but a person who is convicted of violating Penal Code section 487, subdivision
(d)(1) would be eligible for resentencing. Rather, we have concluded defendant was
required to show that he would have been eligible to be convicted of the misdemeanor
violation of Penal Code section 490.2 had it been in effect at the time he committed his
offense. It is conceivable that a person who has been convicted of a violation of Vehicle
Code section 10851, and files an adequate petition alleging the value of the vehicle taken
was less than $950, and had the intent to permanently deprive the owner of the vehicle,
could show he would have been guilty only of a violation of Penal Code section 490.2 at
the time of the offense, and could be eligible for resentencing based on the language in
the statute.
11
However, we simply cannot reach a decision in this case as to whether defendant
was eligible for resentencing because defendant’s Petition filed in the trial court never
raised these issues and was woefully inadequate. Moreover, “As a general rule, only
‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People
v. Smith (2001) 24 Cal.4th 849, 852.) We will not address defendant’s equal protection
claim, raised for the first time on appeal; even if we were to consider the issue, defendant
failed to allege facts in the Petition to support his argument.
C. RIGHT TO A HEARING
Defendant further contends that his constitutional rights were violated by the
failure of the trial court to conduct a hearing and secure his presence at the hearing.
Here, the only information before the trial court was that defendant had been convicted of
an attempted unlawful taking or driving of a motor vehicle. It is clear, as set forth ante,
that Vehicle Code section 10851 is not listed in Penal Code section 1170.18. Based on
the face of the Petition, the trial court could determine that defendant was ineligible for
resentencing, and no hearing was required. Defendant had to allege additional facts, i.e.
that the value of the vehicle was under $950, or zero, as he now contends, and that his
crime constituted a theft offense. The trial court here could summarily deny the Petition
because it contained no facts or explanation how defendant was eligible for resentencing.
(See Sherow, supra, 239 Cal.App.4th at p. 877; see also People v. Oehmigen (2014) 232
Cal.App.4th 1, 6-7 [defendant not entitled to development of facts or hearing if trial court
determined he was ineligible on the face of a Penal Code section 1170.126 petition for
resentencing].)
12
Here, defendant’s Petition gave the trial court no information as to the value of the
property, or that his violation of Vehicle Code section 10851 was a theft offense. As
alleged, the trial court did not err by concluding that since defendant had a conviction of
violating Penal Code section 664/Vehicle Code section 10851, without more, he was not
entitled to resentencing under Proposition 47.
DISPOSITION
The trial court’s order denying defendant’s Petition to recall his sentence is
affirmed. Nothing in this decision or in Penal Code section 1170.18 forecloses
defendant’s ability to file a new petition alleging sufficient facts to support his claim that
his conviction should be reduced to a misdemeanor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
SLOUGH J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant seeking resentencing under Proposition 47 bears the initial burden of alleging facts sufficient to establish eligibility, and the trial court may summarily deny a petition that fails to provide such information.
Issues
Whether a defendant is entitled to a hearing on a Proposition 47 petition that fails to allege facts establishing eligibility for resentencing.
Whether the trial court erred in denying the petition for failing to meet the burden of proof regarding eligibility.
Whether the omission of Penal Code section 664/Vehicle Code section 10851 from Proposition 47 violates equal protection.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The petitioner will have the initial burden of establishing eligibility for resentencing under section 1170.18(a)”
“we affirm the denial of defendant’s Petition because he failed to meet his burden in the trial court of alleging facts that he was eligible for resentencing under Proposition 47.”